Prison Inservitude

by Wendy McElroy
Aug. 30, 2012

The United States Constitution recognizes American prisons as forced-labor camps. The Thirteenth Amendment, enacted in 1865 to outlaw slavery and involuntary servitude, includes an exception. It reads,

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. (emphasis added)

Thus, the Constitution banned private slavery while at the same time it established involuntary servitude in prisons.

Former detainee Finbar McGarry is challenging the rules through which prison slavery may be enforced. He is suing various officials at Chittenden Regional Correctional Facility as well as the State of Vermont for forcing him to labor while in prison awaiting trial for a domestic-dispute arrest; bail was denied to him.

According to his $11-million lawsuit,

McGarry alleges that in mid-February 2009 defendants … required him to work in the prison laundry over his repeated objections. He alleges that he had no choice because defendants told him that his refusal to work would result in his being placed in administrative segregation or “put in the hole,” which, he alleges involves lock-up for 23 hours-a-day and the use of shackles.”

McGarry was also threatened with an “inmate disciplinary report” that would affect his eligibility for release if found guilty at trial. And so he “chose” to work at 25 cents an hour. As it happened, he was released after approximately six months with all charges dropped.

In November 2009, McGarry sued in federal court. The most important grounds were that “forcing him to work constituted involuntary servitude under the Thirteenth Amendment,” and that the Department of Corrections was liable under the Fair Labor Standards Act to pay him minimum wage. Otherwise stated, since the Constitution only authorizes forced labor from prisoners who have been convicted of a crime, his pretrial labor was unconstitutional and a violation of statutory labor law. (The steep compensation sought by McGarry undoubtedly reflects a recurring staph infection he developed due to the unsanitary conditions of the prison laundry.)

The State of Vermont countered by arguing that McGarry's forced labor was appropriate because of its rehabilitative nature. The judge sided with Vermont, stating that prison labor “was nothing like the slavery that gave rise to the enactment of that amendment [the Thirteenth].”

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